Myers v. Moore-Kile Co.

• Decision Date: 09 February 1922
• Docket Number: 3627.
• Citation: 279 F. 233
• Parties: MYERS et al. v. MOORE-KILE CO.
• Court: U.S. Court of Appeals — Fifth Circuit

279 F. 233

MYERS et al. v. MOORE-KILE CO.

No. 3627.

United States Court of Appeals, Fifth Circuit.

February 9, 1922

T. F Hunter, W. L. Scott, and T. R. Boone, all of Wichita Falls Tex., for plaintiffs in error.

W. F Weeks and Tarlton Morrow, both of Wichita Falls, Tex. (Weeks Morrow & Francis, of Wichita Falls, Tex., on the brief), for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

The plaintiffs in error, as trustees for the Liberty Pipe Line Company under a trust agreement, brought suit against the defendant in error, Moore-Kile Company, a corporation, to recover damages for the alleged breach by the latter of a contract to sell and deliver certain pipe, which was described in a written order therefor, dated December 17, 1918, as 'thirteen and one-half miles (13 1/2) 6' lap weld, with long recess collars, 19.46 lbs. per lineal foot. ' The Moore-Kile Company put in issue the allegations of the petition against it, and brought a cross-action, alleging in effect that it complied with the order after the plaintiffs in error had acquiesced in a change of the description of the thing ordered as suggested in a communication containing the following: 'This is to advise that the weight listed by mills for 6' line pipe with long recess collar is 19.367 lbs. and not 19.46 lbs. as specified by you on the order for 13 1/2 miles. We will furnish 19.367 lbs., and if this is not satisfactory advise promptly. As the mills are allowed a 5 per cent. variation of weight, this difference is of no consequence.'

In the cross-action the claim was asserted that a balance was due to the Moore-Kile Company under the contract as it was alleged to have been modified. The trial resulted in a judgment in favor of the Moore-Kile Company, which will be referred to as the plaintiff. The plaintiffs in error will be referred to as the defendants.

During the direct examination of L. W. Kile, the president of the plaintiff, and a witness in its behalf, the plaintiff offered in evidence an instrument of which the following is a copy:

'December 21st, 1918. 'S.-- 1

'Messrs. Cook & Cooper, Liberty Pipe Line Co., Burkburnett, Texas-- Gentlemen: This is to advise that the weight listed by the mills for 6' line pipe with long recess collars is 19.367 lbs., and not 19.46 lbs., as specified by you on the order for 13 1/2 miles. We will furnish 19.367 lbs., and if this is not satisfactory advise promptly. As the mills are allowed a 5 per cent. variation in weight, this difference is of no consequence.

'Very truly yours,

Moore-Kile Company.'

The offer of the instrument was accompanied by a statement by plaintiff's counsel that notice to produce the original of the letter offered had been given to the defendant. The defendant objected to the admission in evidence of the instrument offered, on the grounds that the letter had not been proven up as the rule prescribes in order that it be admitted in evidence, and because the defendants had each and all denied that they had received this letter or had any connection therewith. The objection was overruled, and the instrument was admitted in evidence, after the witness Kile had testified as follows:

'When I got back home I wrote them a letter. This Exhibit No. 2 is a copy of the letter I wrote them. I cannot say that I mailed it personally, but it was mailed with the rest of our mail. All letters in our office are folded, placed in an envelope, and sealed by the stenographer, and mailed by the stenographer. This letter was handled in the same way and in the same manner as ordinary mail. * * * I remember very distinctly of dictating that letter. I dictate the letters and sign them, and the stenographer mails them out in the evening. I handle 25 to 40 letters a day in that way. That is the way this letter was handled. This Exhibit No. 2 is an exact carbon copy of the letter I dictated to the stenographer and signed, and was given to the stenographer to mail. This is an exact copy, made at the same time the original letter was written. I dictated it and signed it as president.'

On his cross-examination the witness testified as follows:

'It was a couple of days after I got back to Tulsa before I looked up the exact decimal. That is when I wrote this letter of December 21, 1918, marked Exhibit No. 2-- when I looked up the decimal. Then I sat down and dictated that letter. The letter was written and brought to my desk, and I signed it. I do not think I saw it folded and put in the envelope. I did not address envelope, and did not see the envelope addressed. I did not stamp the envelope. I did not see it stamped, and did not see it put in the United States mail box. I do not tell this jury of my own knowledge that that letter was properly addressed, properly stamped, and deposited in the United States post office, at any place or time. * * * When I wrote that letter, dated some time in December, in which I told them about this 5 per cent. variation that the mills allowed, I had a return card on the envelope. We were using an envelope at that time with a return card on it. That letter was never returned to us.'

W. M. Cook was the manager of the Liberty Pipe Company, and H. C. Cooper was connected with that company.

The defendants rely on the first above mentioned ground of objection to the admission in evidence of the copy of the letter. Their contention is supported by the rulings made in the case of Hetherington v. Kemp, 4 Campbell, 193, and in some later English and American cases, in which the ruling in the case cited was followed. In that case the plaintiff offered in evidence a letter, after testifying that he wrote and addressed it to the defendant, and put it down on a table where, according to the usage of his counting house, letters for the post were always deposited, and that a porter carries them from thence to the post office. The porter was not called. In rendering the decision Lord Ellenborough said:

'You must go farther. Some evidence must be given that the letter was taken from the table in the counting house, and put into the post office. Had you called the porter, and he had said that, although he had no recollection of the letter in question, he invariably carried to the post office all the letters found upon the table,

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